[Peace-discuss] Telecom victory? Maybe not.

[C. G. Estabrook]

	November 16, 2007
	Immunity May Be Dead Anyway
	by emptywheel

As you've no doubt heard, yesterday Pat Leahy pulled some superb 
parliamentary maneuvers to ensure that the SJC version of the FISA 
amendment came out of committee without immunity for telecoms. He 
basically just severed the part which permits the wiretapping from the 
part that gives immunity. Voila!

Unfortunately, it still seems likely that Harry Reid will let the SSCI 
bill--the one we don't like--come to the floor of the Senate. Pat Leahy 
pulled some nice maneuvers, but Reid has a few more aces in his hand. 
And in any case, it may be utterly moot.

When Arlen "Scottish Haggis" Specter has discussed his "compromise" on 
immunity in the FISA amendment, he has said he thought the cases in CA 
would be thrown out on State Secrets grounds anyway; his compromise (in 
true haggis fashion) is really designed to save the telecoms money while 
they're waiting for the courts to throw out the cases.

Turns out they might not have to wait that long--and immunity may be 
moot anyway. That's because the 9th Circuit, in a unanimous decision, 
threw most of the most Kafkaesque illegal wiretap case out.

     A federal appeals court dealt a near-fatal blow Friday to an 
Islamic charity's lawsuit alleging federal investigators illegally 
wiretapped it, saying a key piece of evidence the charity planned to use 
is a protected state secret.

     A top secret call log that the Treasury Department accidentally 
turned over to the now-defunct U.S. arm of the Al-Haramain Islamic 
Foundation's lawyers can't be used as evidence, the 9th U.S. Circuit 
Court of Appeals ruled.

     [snip]

     The charity's lawyers voluntarily turned over the document to FBI 
agents after it was given to them. A lower court ruled that the lawyers 
couldn't use the actual document to support their lawsuit but could use 
their memories of its contents to go forward.

     [snip]

     "Such an approach countenances a back door around the privilege and 
would eviscerate the state secret itself," Judge M. Margaret McKeown 
wrote for the unanimous three-judge panel.

So basically, these guys have proof they were spied on, they've seen it, 
but the government is requiring that they legally wash their minds of 
any memory of that proof, so as to preserve State Secrets.

The Appeals Court decision on the Hepting case is pending--it relies on 
some other kinds of evidence--but it's a really amazing concept, this 
State Secret thing. The government, of its own accord, gave out the 
secret. But it expects individuals to be bound by it. Further, it 
expects defendants to forgo attorney-client privilege, apparently, 
because there's going to be no way of proving the government 
deliberately violated privilege.

Swell.

Time to think of some novel ways to force the government to stop spying 
illegally. And it's probably time to write some restrictions on spying 
on attorney-client privilege, too. Because the available options don't 
appear like they're going to work.

Update: Ryan Singel has updated his post on this with comments from the 
plaintiff's lawyers that echo scribe's comments below.

     The plaintiff's lawyer Jon Eisenberg tried to argue in August that 
since his clients knew they were spied on, all the court had to do was 
to decide whether spying inside the United States on Americans without 
getting warrants violated the law.

     Thomas Nelson, another attorney for the plaintiffs, said they feel 
good about the ruling since the big issue -- whether the state secrets 
privilege will kill their case -- remains alive.

     While not ruling out a possible appeal for a hearing by a full 
panel of 9th Circuit judges, Nelson says his initial reaction is not to 
appeal.

     "I think we want to duke it out in lower court." Nelson said.

     "My preliminary thinking is to do what the appeals court said and 
take it back to [Federal District Court] Judge Vaughn Walker to see if 
there is a common law privilege under the Foreign Intelligence 
Surveillance Act," Nelson said.

http://thenexthurrah.typepad.com/the_next_hurrah/2007/11/immunity-may-be.html#more